Sticking a pin in Bayh-Dole

Posted on October 22, 2016 by Gerald Barnett

Over at The Hill, James Edwards has an op/ed piece, “Don’t sacrifice patents for politics,” that worries changes to Bayh-Dole march-in procedures. Almost everything about the piece is predicated on the “usual narrative”–which is almost but not entirely false. Let’s have a look.

Before the Bayh-Dole Act, federal research funding was your tax dollars only partially at work. Federal funds went into research — advancing our understanding and producing discoveries — but the government kept the practical application of this new knowledge bottled up.

Before the Bayh-Dole Act, there was the IPA program. It allowed universities and nonprofits to acquire title to inventions made with federal support and was used by the two federal agencies that provided most of the funding to universities–HEW and NSF. It had a 5% commercialization rate. By contrast, HEW’s own commercialization rate was 23%. Bayh-Dole’s rate is kept secret, but major universities report commercialization rates on the order of 0.5%. The government did not “bottle up” new knowledge–just the opposite. The government published discoveries and dedicated the rights to the public. The government made research results broadly available for use. Mr. Edwards has it all ass-backwards.  Continue reading →

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Behind the Usual Narrative, Part IV

Posted on October 21, 2016 by Gerald Barnett

The HEW IPA Program

These distinctions become important as the NIH, led by Norman Latker, pushed in 1978 for the adoption of a template IPA agreement on a federal government-wide basis by the Government Services Administration. This effort was rebuffed by the U.S. Senate. Lester Fettig, testifying on behalf of the Office of Management and Budget, noted the distinctions in the FGCAA and commented:

Federal research and development involves both procurement and assistance and it is important to consider the type of transaction when we consider patent policy.

Senator Gaylord Nelson noted that the proposed IPA arrangement had been pushed through without public notice in a process “dominated” by “universities and other insiders.”  Sen. Nelson noted that nowhere in the template IPA does it define “public interest” and yet it expects the contractor to make that determination.

uipapublicintb

Continue reading →

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Why not give Lee Hood an open research tab of $100m?

Posted on October 20, 2016 by Gerald Barnett

Brooke Struck has written an interesting comment on Dan Sarewitz’s article “Saving Science.” Struck argues we should balance internal and external pressures to perform research. Here’s my take on it. The first part I posted to SciSP and is indented.

I’m not persuaded that the military did all the things Sarewitz ascribes to them. I thought that was what Vannevar Bush did at OSRD, which the military could not think to do. The folks who got mobilized by Bush worked on the problems Bush’s folks identified, not on the ones the military most wanted–they already had people working on those things. You can’t always get what you want, and all. Bush proposed a National Research Foundation to fill the same role as OSRD, standing outside professional establishments (but now establishments such as medicine) to mobilize directed research for civilian purposes, working outside the establishment, drawing on the frontiers of science, with institutional-scale resources. When successful, the new work makes obsolete the problems trending in the establishment work. The frontiers of science part was to add to the available tools through discovery and training to do the other part. Instead, we got the National Science Foundation. Superficially close but significantly different.

Continue reading →

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The beating of Vannevar Bush will continue until productivity improves

Posted on October 20, 2016 by Gerald Barnett

Apparently it is popular in science policy to think that Vannevar Bush failed to have insights worth pursuing when it comes to science policy. Dan Sarewitz calls him a liar. Venkatesh Narayahnamurti and Toluwalogo Odumosu blame him for a distinction between “basic” and “applied” research, which they then demolish in favor of (I guess) “transdisciplinary” teams. Jeffrey Tasao off-handedly accuses Bush of being the originator of the idea of the goofy “linear model” of innovation. And James Holbrook asserts that Bush was “wrong to argue that the free play of free intellects is necessary to produce societal results.”

Well now. That’s quite a load. No doubt Vannevar Bush made mistakes, but let’s at least make the effort to frame what he did write and what he didn’t before we blame him for our problems. Bush didn’t devise the linear model. He didn’t formalize a dichotomy between basic and applied research. And there’s no evidence he was a liar about all this. There is evidence, however, that he valued technology development, and recognized that some of that technology development thrived when it was aided by new findings of science, and that those new findings of science came about without demands made by institutions.

Bush was asked by President Roosevelt to propose how the use of science during World War 2 might be adapted to civilian work. Roosevelt specifically asks about how things might work in medicine. Bush writes Science the Endless Frontier, drawing on a number of reports and recommendations by committees looking at the various issues. A primary concern is how the federal government becomes involved in research. Bush picks up from a phrase that closes President Roosevelt’s request:

New frontiers of the mind are before us, and if they are pioneered with the same vision, boldness, and drive with which we have waged this war we can create a fuller and more fruitful employment and a fuller and more fruitful life.

That’s the premise for both the study and the metaphor that frames the report. The frontiers of science are in the mind, new ways of thinking about the world that allow us to change our conditions of living. The fundamental challenge is what does it take to do that–to explore “new frontiers of the mind.” And more particularly, how to motivate such exploration through the supply of federal funding?  Continue reading →

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Behind the Usual Narrative, Part III

Posted on October 19, 2016 by Gerald Barnett

Support or Purchase?

In American Universities and Federal Research (1959), Charles V. Kidd underscores Bush’s concern that the federal government make a distinction between support and purchase, between subvention and procurement. Kidd cites a memorandum from General Eisenhower to the Army’s various organizational units: “we must separate the responsibility for research and development from the functions of procurement, purchase, storage and distribution” (158, quoted in Price, Government and Science). Kidd notes that as of 1959, the Department of Defense had yet to figure out how to implement this separation–or just didn’t see the separation as important.

As we will see, Bayh-Dole does not solve this issue–it makes the rejection of Bush’s insight a matter of law by conflating all contracting, whether subvention or procurement, under a single “uniform” policy. It is just this sort of singular policy that must meet every federal agency need that Bush sought to avoid and others sought to at least accommodate. But procurement contracts gave certain interests–commercial and patent brokers–advantages in the discussion that federal gifts to support basic research did not. Continue reading →

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Was Vannevar Bush So Wrong?

Posted on October 18, 2016 by Gerald Barnett

Over at Science of Science Policy there’s more discussion of Vannevar Bush, this time attributing to Bush the “linear model” of innovation that asserts that basic research leads to discoveries that applied research then prepares for development into commercial products, and that boys and girls is how everything good in society comes into being. If it weren’t for companies making products, you wouldn’t even be able to take a dump. You’d be a helpless mass of of blubbering jelly.

Of course, Bush doesn’t state a linear model of innovation in Science the Endless Frontier, and isn’t the origin of it. He’s the totem for it. Here’s what I posted at Scisip:

Why is it that recent efforts to “save science” try to pin the problem on Vannevar Bush? I have no love for the “linear” model of innovation. But (as Benoît Godin has pointed out) it’s not in Science the Endless Frontier. Why not pin the problems on the policy wonks, administrators, and lawyers who ignored Bush and created yet more institutional science and institutional management, with their grandiose projects and contract mediocrities–just what Bush worried (in Modern Arms and Free Men) could happen? Why not pin the problem on institutional processes, on the domination of the concept of the research “project” as something reviewable in advance, as carrying the “merit” (as Charles Kidd worried, back in the late 1950s)? Why not pin the problem on the goofy distinction between “basic” and “applied” as forms of research rather than outcomes of an endeavor?

Continue reading →

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Behind the Usual Narrative, Part II

Posted on October 17, 2016 by Gerald Barnett

Bush’s Idea

Vannevar Bush’s Science the Endless Frontier argues that the federal government has a proper role to play in advancing scientific research by supporting both research and scientific education. “The Federal Government,” writes Bush, “should accept new responsibilities for promoting the creation of new scientific knowledge and the development of scientific talent in our youth” (31). This is a good starting point–something new being introduced into the activities of the federal government, and fraught with challenges.

Bush proposes a new federal agency, one without an operational mission, to support these two goals. But there’s a hitch. How does the money move from the government to universities? Bush argues that the current agency practices are not appropriate to the task (emphasis added):

But nowhere in the governmental structure receiving its funds from Congress is there an agency adapted to supplementing the support of basic research in the universities, both in medicine and the natural sciences; adapted to supporting research on new weapons for both Services; or adapted to administrating a program of science scholarships and fellowships.

A new National Research Foundation would avoid the problems of “operational” agency missions: Continue reading →

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Behind the Usual Narrative, Part I

Posted on October 14, 2016 by Gerald Barnett

The Bayh-Dole Act comes about as a response to a series of situations that develop after the federal government takes an interest in supporting basic research conducted at universities. Much goes on. The usual narrative on universities and patent rights has been composed and repeated by the victors (or so they would have it) and answers to the question “How has today’s success come about?” That question carries with it a number of assumptions about what sort of account its audience should expect to hear.

In the usual narrative, before Bayh-Dole, universities were not involved with inventions and research languished “on the shelf” and the public had no benefit from it. After Bayh-Dole, suddenly there were incentives to commercialize those inventions, and universities developed tremendous programs in technology transfer, have licensed thousands of inventions and started hundreds of companies, with success stories everywhere, for which patent administrators should be justifiably proud, the public grateful, and the government struck with awe. Why anyone would think there were problems or want to change things now is beyond credible discussion. This narrative is a tidy package–part true, part marketing, part confirmation bias, part substitution of intent for action, part made up to fit the purpose of the narrative. Above all, the usual narrative moralizes. The morals of the story are that Continue reading →

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Behind the Usual Narrative

Posted on October 13, 2016 by Gerald Barnett

Starting tomorrow, Research Enterprise will feature a series of five articles looking at how the narrative formed that now dominates Bayh-Dole Act discussions. We start with Vannevar Bush’s effort to create a federal agency focused on frontier scientific research and creating an environment for discovery, and how this effort was swamped out by federal agencies and universities. Instead, university research was folded into federal procurement, but with fewer administrative requirements. This conflation of grant and contract leads to an expectation that the government can make whatever claims it wants to when offering support, including claims to patentable inventions as deliverables. You see where this goes, perhaps.

The focus of the articles then turns to efforts to bring some organization to the chaos of federal agency dealings with contractors of all sorts. Universities get no special treatment under the 1963 Kennedy Statement of Government Patent Policy, which establishes a government-wide uniform policy on patentable inventions made in contracting for research. A university is just another contractor without an established commercial position doing work that may involve public health or welfare. The Institutional Patent Agreement approach, started in the 1950s and revived in 1968, navigates within government patent policies and procurement regulations. The IPA created in 1968 by HEW, though, is clever–it gives nonprofit contractors an option under the contract to acquire the government’s interest in securing assignment of inventions. Work through that slowly. The government requires delivery of title to inventions made in a funding agreement. Now the government allows the contractor the option to obtain the government’s right of delivery of title. The government grants the government’s right to take title to the contractor, so the contractor is acquiring title and “administrating” rights as it were on behalf of the government.

With this account in hand, we then can look afresh at how Bayh-Dole operates. Continue reading →

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Bayh-Dole served up by the Catholic University of America’s general counsel

Posted on October 12, 2016 by Gerald Barnett

Here’s a bit from the office of general counsel at Catholic University of America. See how many things this statement of Bayh-Dole gets wrong in only four sentences. I’ll give you a few minutes.

The Bayh-Dole Act of 1980 (Patent Rights in Inventions Made with Federal Assistance)

35 U.S.C. § 200-212; 37 C.F.R. Part 401

Purpose: Establishes a uniform policy for the disposition and licensing of rights to patentable inventions discovered in the course of federally-funded research. The definition of a subject invention is intellectual property that is either conceived or first actually reduced to practice in performance of a government-funded project. This Act gives grantee/contractor organizations first rights to title of a subject invention stemming from federally-funded research, provided the federal funding agency is notified of the invention within 60 days, receives a nonexclusive, nontransferable, irrevocable, paid-up license to practice the invention, the federal agency support is acknowledged in any related patent application, and commercialization is actively pursued. In certain instances, the university may retain title to inventions made with the assistance of federal funding.

Had enough time? Let’s work through these four sentences.  Continue reading →

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